Stokes v DaimlerChrysler Corporation
The Workers’ Compensation Appellate Commission has released a major decision, decided by all five Commissioners, in one of our cases. It relates to issues arising in Sington disability cases. The opinion is 101 pages long. The first opinion is the dissenting opinion of Commissioner (recently appointed Magistrate) Kent. The final opinion is that of Commissioner Przybylo, also in dissent. The middle opinion is the controlling opinion authored by Commissioner Granner Ries, and is concurred in by Chairperson Glaser and Commissioner Will.
By way of background, Magistrate Rabaut found plaintiff to be suffering from a work-related back disability. While the case was on appeal before the Workers’ Compensation Appellate Commission, the Supreme Court released Sington. The Appellate Commission then remanded this case, after deciding a number of other issues, to the Magistrate for reconsideration in light of Sington. When the case returned to the Magistrate, defendant sought to have plaintiff meet with a vocational expert in order to determine the range of work suitable to his qualifications and training. Although plaintiff had worked as a hi-lo driver for DaimlerChrysler Corporation for most of his life, he had taken college courses while working at DaimlerChrysler Corporation over the years. The Magistrate on remand refused to compel plaintiff to meet with the vocational expert. The remand hearing then took place with plaintiff testifying on the stand with respect to his qualifications and training. The vocational expert was present at the remand trial. Defendant then placed him on the witness stand. On the witness stand, he indicated that on the basis of what he just heard he would need to research the present availability of jobs that fell within plaintiff’s qualifications and training or else he would be speculating. Defendant then moved the Magistrate to adjourn the case to allow the vocational expert to do so. The Magistrate refused. The Magistrate then found that plaintiff was disabled and there was insufficient rebuttal to plaintiff’s claim.
The case then returned to the Workers’ Compensation Appellate Commission. The Commission agreed to hear the case en banc, which means all five members will hear it in order to set a precedent in the state.
The majority decision as a whole barely disguises this attempt to undo Sington. In fact, the majority eventually admits it is “deeply troubled” by Sington and that “Sington introduced the concept heretofore unknown in Michigan that there must be a particular economic consequence to the employee’s medical impairment [in order] to f[i]nd disability.” The majority’s effort in this decision is two-fold.
First, in the second part of the decision, the Commission makes every attempt to resurrect Haske, which was the Supreme Court case specifically overruled by Sington. Haske held that the inability to do any one job suitable to one’s qualifications and training equates with disability. The controlling opinion in this case says that the claimant can set the limits of which work is suitable to his or her qualifications and training. And, the majority says that the phrase “suitable to qualifications and training” should only be understood to mean jobs that the claimant last did (or perhaps had done in the past). In other words, it cannot include transferable skills or other jobs that might be suitable to the claimant today. Additionally, the opinion makes the point of saying that if the claimant has not actually returned to post-injury work, it will be exceedingly difficult for any employer to demonstrate that the person actually has any wage earning capacity left. The majority accomplishes this by saying an employee need not “causally relate the loss of wages to the injury at work,” a quite remarkable statement. The Commission then adds that, rather than the employee bearing the burden of proving his or her case, it is “a burden on the employer to prove … that the employee is able to earn wages in work suitable to his qualifications and training.”
The Commission rounds off the decision by saying that, although these matters are defendants’ burden of proof now , there is no authority in the Act to compel a Magistrate to force a face-to-face meeting with a vocational expert such as defendant requested in this case. And, there is no authority in the Act to compel a claimant to answer interrogatories so as to otherwise prepare a vocational expert to testify at trial. Finally, the Commission does not find any abuse of discretion by Magistrate Rabaut in his refusing to adjourn the trial after defendant’s expert said on the stand that he would need to research the matter on the basis of what he just heard or else he would be merely speculating about what work plaintiff might be able to do.
Thus, we have a decision where – as Commissioner Przybylo says in the final dissenting opinion – defendants have been assessed with an enormous burden of proof but given no means to meet it. Commissioner Przybylo accurately concludes the changes effected by the controlling opinion “makes defending a disability claim nearly impossible. It casts the burden of proving the earning capacity of almost all jobs on defendants. It then finds discovery outside the authority of the WDCA. Under the changes, I cannot understand the method the controlling opinion affords a defendant to collect the information exclusively within a plaintiff’s knowledge to offer the wage earning capacity proofs he requires defendants to present. Again the workers compensation procedures cannot deprive defendants of the evidence critical to defending disability claims.”
The decision is being appealed and we will keep you abreast of the developments.
